*1 injunction grounds that for an demurrer were there were no petition specific prayer contained no relief. this allegations The to referred are to the effect that the defendants paying any should be from prohibited out more of the funds of changing estate or the status of the estate until such proper accounting your time as petitioner. have made a allegations These refer to relief the main relief incidental sought, spendthrift which is have the trust annulled and to accounting. allegations petition have an of the are sufficient relief, granted may authorize such and such relief under prayer general relief petitioner whenever a in a court equity appears entitled thereto.
Since the record does any disclose there was motion plea to strike the in bar, or that there demurrer to the plea in bar, ruling court overruling below plea in passing on the demurrers of the defendants in the court below was not authorized; and it is directed that portion judgment be vacated.
Judgment with All direction. concur. Justices affirmed DIXIE BROADCASTING CORPORATION et al. v. RIVERS;
et vice versa. *2 April Argued January 17, 1952— Nos. 1952 Decided May Rehearing 14, 1952. denied *6 Bouhan, Lawrence, Williams & Levy, Douglas, & McWhorter Adams, Powell, Goldstein, Frazer & Murphy, and J. Winston Huff, plaintiff in error.
Marvin O’Neal Jr., contra. facts.) foregoing (After stating the Justice. Candler, require elaboration. not 3, and do 1, 2, Headnotes simply action. He characterize his pleader does if these recovery; and, he upon which relies forth facts sets recover, it is not in law entitle the are such as facts or characterized action should be classified necessary that the plaintiff complains proceeding name. In this case filed him with Federal Communica defendants of action which There various forms tions Commission. reason injury for an may be had to sustained resort recover legal proceedings. Ordinarily remedy wrongful use of of process. for malicious use or “The founda abuse an action prosecution original proceed an for malicious is an action tion of in character.” 54 C. J. S. Federal judicial 5. The ing, *7 strictly Commission court, is but has Communications proceedings satisfy must powers, and the its quasi-judicial process. seq.; of due 47 U. S. C. A. et pertinent demands 151 § Commission, Inc. v. Federal 170 L. B. Wilson Communications Federal Commission is an 2d, Fed. 793. The Communications Government, board the Federal -it was of and administrative (143 Pence, 2d, 149), v. 130 Fed. L. R. in Melvin 423 A. held prosecution action for malicious cause malicious the that a of legal may predicated upon proceedings prosecution be the use of proceeding. the effect, an administrative To same see Nation of 2d, Law, Fed. 145. In Surety Page, Co. v. Restatement al 58 III, 458, 680, procures said: it is “One who initiates or Torts § proceedings against initiation of civil another before an the power adversely board take administrative which has action affecting legally protected subject interests other, the the is liability any special (a) for harm if the caused thereby, proceedings probable are initiated without cause believe that charge proceedings or claim which are is the on the based well primarily purpose securing for a founded, and other than that of by (b) action and appropriate board, proceedings have against person in favor terminated are whom brought.” petition alleges amended
The case that the defendants maliciously probable and without cause proceedings initiated against plaintiff before the Federal Commis- Communications
106 charges against untrue; him
sion;
so made
were false and
that the
finally
so filed
him
terminated
proceeding
that the
had
reputation
favor;
personal
his
and that
and
radio busi
his
his
injured
damaged
been
thereby
ness had
in a stated amount.
necessary
for
Those are
elements of an action
the malicious
process
legal
proceeding.
use
the malicious use of a civil
Code,
105-801;
v. Boehm,
Co.,
Juchter
Bendheim &
67 Ga.
534; Mitchell v.
Railroad,
398;
Southwestern
75
v.
Ga.
Coleman
(5
Allen,
The damages recover on to two counts, to injurious wit: libelous averments to reputation, and losses delay resulting starting from in construction. We deal with just these in the order listed.
(a) By 105-711, Code which was codified from the decision § Sullivan, in Wilson v. 81 Ga. 238 S. 274), allegations E. all in pleadings absolutely made provided are privileged, they are and revelant to the relief sought, material and the court has grant to that The preceding relief. jurisdiction section of (105-710) that, if privileged declares a Code communication, venting merely cloak for to in “is used as a 105-709, referred § object for promotion of the private malice, and not bona fide in a have party defamed shall privilege granted, the which the quoted case, supra, in right action.” This court the Wilson of qualified with dealing that and asserted it was a that section in averments privilege, and then held that those conditional described, classification, in above did fall that pleadings, as not at they absolutely privileged. w^ere “Absolute” because means exceptions. such any simply puts This all times and any suit of whatever nature beyond the reach allegations resulting damages therefrom. It means that law recover damages allega- that can be ever for such decreed there no has provisions recovery authorizing It that all of law tions. means damages for use of civil malicious abuse of process, malicious damages prosecution, refer which legal process, or malicious allows, and damages law do not include for libel in pleadings. in privileged supra, It was held case, Wilson’s that making allegations false is immaterial. existence of malice allegations privileged. false “However Code declares such are they not libelous.” 105-711. If malicious, damages manifestly can and recover then no one sue libelous, privilege absolute resulted therefrom. This alleged have damages for completely protects liability the defendant from thereon, prohibits based for libel and that which law in suit a indirectly. permit never Ford Motor directly it will Co. Aber- 2d, rule crombie, 207 This means naming damages of a suit which to recover mere seeks resulting something such libel other from than a direct suit for though damages be resulting that name suit libel, even a process, civil can in malicious use of nowise lift the absolute recovery allegations because bar legal privileged libelous Indeed, Wood, the decision Francis 75 Ga. under the Code. though that, consisting the suit there, held 648, plainly libel in counts, alleged alleged count one and malicious number yet etc., counts, plaintiff a verdict other for the prosecution, charge because finding be reversed authorized a must the libel count. squarely on That decision favor privileged libel recovery had, could not even held upon prosecution. in a based malicious sought suit It though *9 108 process have been the if use had
would
same
civil
malicious
of
prosecution.
been
for
substituted
malicious
(b) By
that,
unanimous decisions
held
in order
this court has
to recover in a
suit
use
be
process,
malicious
of civil
it must
process
shown that
(1)
person,
caused
an
either
arrest of the
(2)
special
property,
(3)
injury.
seizure of
other
Mitchell
v. Southwestern Railroad,
398;
Paper
75 Ga.
Co.
Jacksonville
v.
(17
Owen,
A his plaintiff “Special distinctly. Code, 81-101. defects or omissions § advantage demurrer; of petition may always by the taken amendment, petition dismissed.” by unless cured the shall be upon by special demurrer plaintiff 81-304. When the is called necessary allege for the defense facts which defendant’s Telegraph Griffith, Western Union Co. v. averred. must be (49 Powell, E. (36 4 S. E. Warren Ga. S. Ga. 551 the 730). pleading is, of the most universal rules “One of only action, of but should set forth a cause plaintiff should precision fulness and as will allege of action with such his cause' Oswald, 96 to answer.” Bradstreet enable the defendant Co. case, by In shown our Ga. as facts, sought the due of defendants time form statement by special compel demurrer to the set forth with more certainty, and particularity allegedly he precision, contracts statement an itemized of the construction advertising; had for by him, allegedly the cost which had purchased materials engineers allegedly names the civil who had increased; sought by and data. engineering service As thus him furnished defendants, petition these omissions from the should have supplied proper supra; amendment. been Warren v. Powell, R. & Nashville Co. v. Louisville Barnwell, 501). Accordingly, judge trial did not err, contended, grounds sustaining special those several demurrer each interposed petition count of as were the defendants on March
Judgment exceptions. reversed the main bill All on concur, except Justices Candler, JJ., who dis- Wyatt, Head, Judgment All exceptions. sent. on the cross-bill affirmed the Justices concur. Justice, dissenting. In accordance with the wishes
Candler,
court,
foregoing
opinion
prepared
in conformance
*11
majority
with the
view. What is said in division 6
not,
does
my
however, represent
complained
own view.
injury
The
consequent damage, according
allegations
and the
to the
petition, resulted
amended
from a tortious act committed wil
fully, maliciously,
probable
and without
cause. And,
general demurrer,
a
each count of the
petition alleges
amended
damages
may be recovered
which
in a
for
suit
the malicious use
proceeding.
of a civil
In this connection see
v.
Wilson
Sullivan,
(7
274),
73; Johnson, supra; Porter v. Loan & Trust Co. (43 Johnston, 116 S. 27); Woodley Ga. 623 E. supra. v. Coker, “A 105-801, criminal Code, declares: prosecution, Our mali § on, any probable ciously cause, whereby carried person give prosecuted, to the shall him damage ensues a cause in prosecution an action for of action.” malicious
Ill recovery in to actual loss in dollars not confined his the out paid suffered, money nature of he has whether cents non-pecuniary gains prevented. may also recover for He or re sustains, he and these are often the chief items of his losses covery. damages C. L. 75. are such as 18 R. General § Code, act. 105-2006. presumes law flow to tortious § exemplary dam imposition punitive But or authorize “To ages misconduct, fraud, be malice, must evidence of wilful there wantonness, oppression, or which that entire want of care or presumption would raise a conscious indifference con sequences.” Railway 147, Ga. O’Bryan, Southern Co. v. Corp. Cole, E. S. Investment Securities cit.; Code, And, 105-2002. 126), § prosecutions, Code, 105-808, provides malicious suits for § recovery damage that “The shall not confined actual regulated by sustained the accused but shall be the circum punitive general rule, exemplary stances each case.” aAs damages damages upon all recoverable actions based ingredients acts, malice, involve fraud which tortious disregard plaintiff’s insult, rights. for the or wanton reckless “In England, the statute of Am. Jur. before practice III., 1277, constantly that, Hen. to hold maliciously probable cause, sued another and without where one upon person damages he was liable an action on case, passage statute, gives but since the of that which costs *12 yer jalsum clamorem, bringing defendant of a civil suit maliciously probable upon and a ground without cause was maintained. Yet there distinc could be was this action an which maliciously was sued out an action and without when tion: person whereby arrested, of the defendant was cause, probable special grievance attached, any defendant, or property his lie, and, understand, the action would case as we a then when law State a and province, the common this was was passed 1784, was and would have adopting our statute when Mitchell v. law without this statute.” Southwestern been at may been the Ga. 398. But whatever have rule Railroad, expressly emphatically Code and declares that law, our common probable maliciously carried on without prosecution, criminal a person prosecuted, cause, damage shall whereby ensues to by him and it give action; a cause is well settled the authori applies cited above that rule ties the same for the mali suits proceeding probable use of civil cause. In cious a Wilson Sullivan, supra, remedy v. this court said: “The for one who groundless been and suit, harassed a malicious where has any remedy, an is is not action for defamation, there but prosecuting bringing maliciously prob and the suit and without petition alleges able cause.” In this each count of the case, general punitive damages, amounting and $200,000, ensued consequence complained plaintiff in of, the act and there prayer recovery is a for the of the same. To there no was special demurrer, and, against general a demurrer, the aver damage. ensuing petition ment is sufficient to show Under a and alleging praying general a tort damages, the may damages proven; recover actual all and, injury if the slight damage shown, actual nevertheless, no he may, damages. recover Hall Browning, nominal v. 2d, Glenn Telegraph Western v. Union 1Co., Ga.
App. And in Woodley v. Coker, supra, held damages may that “Punitive be recovered in sounding action where wantonly tort the tortious acts were maliciously general committed.” As demurrer, petition alleged each count of in this case recoverable dam ages.
I am authorized to Wyatt state that Justices Head concur in this dissent. Broadcasting Company et et al. vice versa.
Savannah Rivers; These day Justice. cases controlled the decision this Candler, Broadcasting Corporation Rivers, rendered Dixie ante. Judgment exceptions, on main reversed bill on cross-bill affirmed exceptions. except concur, Candler, Wyatt, Head, JJ., All the Justices who dissent judgment exceptions. on the main bill All the Justices judgment exceptions. as to the on the cross-bill concur Argued January 17739, 17, 17740. April Nos. 1952 Decided Rehearing May denied